Class-action lawsuit against Harditex cladding fails

By Melissa Perkin. 

A second class-action lawsuit[1] brought by a group of 144 homeowners whose homes were clad in Harditex fibre-cement cladding, has failed. The homeowners alleged that Harditex manufacturer James Hardie, between 1987 – 2005, knowingly sold defective cladding used to build thousands of homes. The homeowners sought damages for the costs of repairs plus special damages, general damages, post remediation damages and expert costs.

The High Court has this week issued its judgment in the case which began nearly a year ago and had a hearing which lasted over 17 weeks.

The Claim

The homeowners alleged the Harditex product was insufficiently tested prior to its release, did not meet durability standards, as well as alleging that James Hardie was negligent in the assistance it gave to builders installing it.

It was also contended that by the year 2000, James Hardie knew or ought to have known the product has flaws and was obligated to warn the public about them.

Analysis and evidence considered

The Court’s judgment analyses the Harditex product in relation to the following issues:

• Did it meet accepted moisture management standards?
• Durability (including its resistance to microbiological attack);
• Ability when installed to cope with building movement;
• Susceptibility to mould; and
• The various challenges to specific aspects of how it was installed.

The Court preferred by a significant margin, the expert evidence led by James Hardie. Many of its experts were world leaders in their field, and the Court found the content and manner of their evidence was reliable.

High Court’s conclusions

The Court agreed that James Hardie owed the homeowners a duty of care, but held that the homeowners had not proved that Harditex was a cause of the weathertightness issues.

The Court found that the product, assessed against established building science, was not flawed in its design, had been adequately tested and had independent endorsement. Further, the technical assistance given by James Hardie was sufficient and was correctly directed to the reasonably competent builder.

In terms of buildability, the Court found that Harditex was not proved to be materially different from sheet cladding products that preceded it. The Court’s conclusion was that the inherent flaws alleged by the plaintiffs were not proved, and Harditex was a conceptually sound product that could be installed in a way that would provide a weathertight house.

In relation to eight properties that were the subject of detailed analysis of the water damage, the Court found that evidence repeatedly identified fundamental building errors and repeated non-compliance with the instructions that accompanied the product. These building errors were so significant it was not possible for the homeowners to prove that some flaw with the product was independently a cause of damage.

It followed that the homeowners’ claims in negligence failed. There were also claims under the Fair Trading Act which were separately considered but which were also dismissed consequent upon the primary findings of fact.

The failed class action comes just nine days after settlement of a separate $220 million class action against James Hardie, in which more than 1000 homeowners represented by lead claimant Karen White brought similar allegations against the Harditex product.

James Hardie received $1.25m in settlement of that case, with the litigants agreeing no party would admit liability and settlement was “full and final” in respect of all claims arising out of the case.

A third weathertightness class action claim against James Hardie is scheduled to commence in the Auckland High Court in May 2023.

Click here for a summary of the judgment.

[1] Cridge v Studorp Limited [2021] NZHC 2077